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November 14, 2013

"Misconstruing Graham & Miller"

The title of this post is the title of this notable new piece by Cara Drinan now up at SSRN. Here is the abstract:

In the last three years the Supreme Court has decreed a sea change in its juvenile Eighth Amendment jurisprudence. In particular, in its Graham v. Florida and Miller v. Alabama rulings, the Court struck down a majority of the states’ juvenile sentencing laws, outlawing life without parole for juveniles who commit non-homicide offenses and mandating individualized sentencing for those children who commit even the most serious crimes.  An examination of state laws and sentencing practices, however, suggests that the Graham and Miller rulings have fallen on deaf ears.  After briefly describing what these two decisions required of the states, in this Essay, I outline the many ways in which state actors have failed to comply with the Court’s mandate. Finally, I map out a path for future compliance that relies heavily upon the strength and agility of the executive branch.

November 14, 2013 at 03:20 PM | Permalink


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I don't see the various state actions as misconstruing these cases so much as refusing to follow them. It's a very different situation from Roper or even Kennedy where the struck laws were only applicable in tiny portions of the country.

Mandatory juvenile LWOP on the other hand did not enjoy the near consensus against it application, and even now lmany states are looking to do as little possible in order to comply.

Posted by: Soronel Haetir | Nov 14, 2013 8:19:31 PM

I don't see it as the states misconstruing these states as much as the author wanting to extend these cases beyond their actual holding.

Most sentencing schemes are to some extent "mandatory" if by mandatory you mean limiting the available options. A statute that creates a range of punishment of not less than twenty years is more mandatory and less individualized than a statute that creates a range of punishment of not less than ten years, but most people would not consider either statute as precluding individualized sentences.

Graham (for non-homicide offenses) states that the maximum punishment must allow some meaningful consideration for parole. Miller (for homicide offenses) states that the minimum punishment must allow some meaningful consideration for parole. Under both cases, a statute that creates alternative punishments complies with the requirement for individualized sentencing.

The real issue, glossed over by the article, is what period of parole ineligibility precludes meaningful consideration for parole. While the article recognizes that there might be sentences that are de facto equivalent to life without parole, it does not engage in any analysis of the issue. I think what you are seeing in the states is the failure of the Supreme Court to put any meat on the bones of how long a juvenile can be parole ineligible. Without knowing the answer to that question, you have legislators with competing proposals as to the minimum term and no consensus because everybody is guessing at how long that minimum term could be.

Posted by: tmm | Nov 15, 2013 11:22:23 AM

After having read the note, it is further evidence of the insulation between people who regularly practice law in the relevant area and the academics who tells us how to do our jobs without any responsibility for negative outcomes or cost.

That being said, the article fails to address that the resistance by all the players identified may show that the Supreme Court was wrong when it determined under the "sea change" in 8th Amendment analysis that there was a national consensus against mandatory LWOP for a small class of juvenile offenders who kill. It seems apparent that when you have to cite California as the model for enacting post Miller/Graham solutions that the Supreme Court's decision is an outlier as opposed to judicially mandating an otherwise national consensus.

Not acceptable to Ms. Drinan to be sure, but perhaps such resistance could be cited as evidence that that there is no national consensus, or that it is moving in the other direction (except here in CA).

Posted by: David | Nov 16, 2013 9:33:30 AM

The author is clearly implying a federal troops action as was used to enforce the attendance of a black student at the U of Miss. Not one word about victims, past and future. Why does the lawyer not care about victims? They do not generate massive government make work job for the profession as the criminal does.

I have proposed opening the tort liability of all government entities and agents to crime victims. The lawyer would then make a living from the interest of victims, and the government would shrink as would crime rates. To deter.

Posted by: Supremacy Claus | Nov 19, 2013 7:37:08 PM

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